Spy games

Everybody loves a good spy story. And what could be more dramatic than the cloak-and-dagger saga of the intelligence establishment's quest to keep America's nuclear weapons know-how from falling into the wrong hands?

But two recent books raise unsettling questions about the prowess of the nation's would-be spy catchers and the politicization of the nation's law enforcement establishment.

These two works span the half-century from the discovery that Soviet agents pilfered World War II atom bomb secrets to the recent uproar over fears that China may have stolen the design of a sophisticated U.S. nuclear missile warhead. A Convenient Spy: Wen Ho Lee and the Politics of Nuclear Espionage, by journalists Dan Stober and Ian Hoffman, chronicles the recent prosecutorial fiasco in which government agents-after leaking sensational charges to the press and igniting a congressional firestorm over possible Chinese spying-dropped all but one of the 59 counts they had brought against a Los Alamos National Laboratory computer scientist named Wen Ho Lee. After being jailed without bail for nine months, Lee was released with an unusual public apology from the presiding judge, who declared that the government's handling of the case "embarrassed our entire nation and each of us who is a citizen of it."

In Chasing Spies: How the FBI Failed in Counterintelligence but Promoted the Politics of McCarthyism in the Cold War Years, historian Athan Theoharis of Marquette University details how long-entrenched patterns of clandestine-and often unlawful-surveillance, plus a penchant for ideological grandstanding, have chronically interfered with the successful prosecution of espionage cases. He notes, for example, that the FBI's intensive monitoring of suspected Communist activists dating back to the 1930s neither prevented Soviet agents from obtaining A-bomb secrets from the Manhattan Project nor resulted in the prosecution of all those later revealed in decoded communications intercepts to have been involved.

Both books suggest that ambitious government officials sometimes prefer to parlay sensitive findings into sensational headlines or partisan ammunition for the use of ideologically kindred lawmakers. The temptation to do so seems especially strong when the evidence indicating espionage is only circumstantial, or if the evidence cannot be admitted in court because it has been illegally obtained or would compromise intelligence sources.

Thus, as Stober and Hoffman relate, the accusers of Wen Ho Lee found a receptive audience in the press and on Capitol Hill. Lee's prosecution began not with an arrest or an indictment, but with a front-page story in The New York Times based on leaked information. The story, carried beneath a headline declaring "China Stole Nuclear Secrets from Los Alamos, U.S. Officials Say," did not name Lee, but quoted an anonymous source declaring that there was a suspect who "stuck out like a sore thumb." The source added that the suspect was "a Los Alamos computer scientist who is Chinese-American." The Times story appeared on March 6, 1999, and panicky Energy Department officials fired Lee two days later. It took until December of that year, however, for a grand jury to charge him with violations of the Atomic Energy Act and the Espionage Act, the most serious of which were punishable by life imprisonment. By the following September, however, prosecutors meekly allowed Lee to plead guilty to a single minor count of mishandling classified information punishable by the time he already had served. That left The Times to observe several months later, "The case of Wen Ho Lee was a spy story in which the most tantalizing mystery was whether the central character ever was a spy."

During the months that Lee spent in jail-which coincided with the run-up to the 2000 presidential election-critics of the Clinton-Gore administration had a field day. "Republicans were fairly salivating at the chance to prove Clinton had sold nuclear secrets to the Chinese or at least turned a blind eye," Stober and Hoffman observe. On May 25, 2000, a panel led by Rep. Christopher Cox, R-Calif., issued a chilling report casting the People's Republic of China as a dangerous enemy with the newly acquired capability to launch missiles tipped with miniaturized nuclear warheads. "Without the nuclear secrets stolen from the United States, it would have been virtually impossible for the PRC to fabricate and test successfully small nuclear warheads," the report declared.

Stober, a reporter for The Mercury News in San Jose, Calif., and Hoffman, a science writer for the Albuquerque Journal, argue, however, that the Cox panel had no nuclear weapons experts on its staff and overlooked "a wealth of intelligence [that] suggested Chinese weaponeers were quite capable on their own" and had Soviet help in mastering the technology to miniaturize warheads.

Although Wen Ho Lee's name never appeared in the Cox Report, the huge amount of press attention that had been given to his case added flesh and blood to the committee's frightening pronouncements. "He was the prototypical Chinese spy, stealing the secrets with which the PRC might destroy American cities," Stober and Hoffman say.

An irony of the case is that Lee fell under the FBI's suspicion because of his contact with someone who the authorities believe was spying, but whom they never attempted to prosecute despite the much stronger evidence they possessed. In December 1982, Stober and Hoffman recount, Lee phoned a Lawrence Livermore National Laboratory scientist named Gwo-Bao Min, whose phone was being secretly tapped by the FBI. Earlier, a U.S. intelligence agent in China had fingered Min, and the scientist had subsequently been caught at an airport en route to China carrying sensitive nuclear weapons information. Min, however, was never arrested, in part because of fear that a trial might reveal the identity of the U.S. spy in China.

Theoharis, a scholar who has doggedly fought to gain access to records that former FBI Director J. Edgar Hoover hoped would never see the light of day, attempts to answer the nagging question of why FBI officials, despite their intense monitoring of Soviet and Communist activities during the 1930s and 1940s, "failed to uncover Soviet agents and their American contacts, or develop admissible evidence for their prosecution."

He, too, cites an important case involving a Los Alamos scientist suspected of betraying nuclear weapons secrets. In 1950, after U.S. intelligence agents figured out how to decipher coded Soviet consular cables that they had been intercepting for nearly a decade-the so-called "Venona messages"-they learned that the Russians had received critical classified information from a brilliant young physicist working for the Manhattan Project named Theodore Alvin Hall.

The discovery of Hall's role coincided with the charges of nuclear espionage famously lodged against Julius and Ethel Rosenberg. Anti-Communist sentiment was at a fever pitch in the early 1950s, and the Rosenbergs soon were heading to the electric chair. Although U.S. authorities had Hall dead to rights-the decoded cables mentioned him by name as a contact who, in 1944, had "handed over" an extensive report about the U.S. atom bomb project to a Soviet KGB agent-no attempt was made to indict him. To do so, the intelligence community would have had to disclose the existence of the intercepted Venona cables, something that neither the FBI nor military intelligence officials were willing to do.

Unfortunately for the Rosenbergs, Theoharis points out, "FBI officials did not need to disclose the Venona messages in order to indict and convict" them, because they were able to find other witnesses to testify against them. Although Julius Rosenberg's "culpability-even more so his wife's-appears to have been less than Hall's," the Rosenbergs were executed in 1953. As for Hall, he moved to England in 1962 and enjoyed a long and distinguished academic career before dying of natural causes in 1999.

The authors of both books concede that catching spies is not easy. Theoharis asserts, for example, that the differing outcomes in the Hall and Rosenberg cases "do not suggest FBI incompetence," but instead "illustrate the counterintelligence dilemma: the difficulty of learning about inherently secret and closely safeguarded espionage operations without resorting to intrusive investigative techniques" that frequently forestall prosecution.

Theoharis fleshes out Hoover's role in espionage and the harm it caused: "Hoover, acting on his own, formally authorized FBI bugging and break-in operations in 1942, and in 1940 approved a series of eight mail-opening programs targeting suspected `subversives' and espionage agents." The use of such illicit surveillance procedures, he demonstrates, interfered with the agency's law enforcement mission. In order to indict Communist Party officials for violating the Espionage Act, or for failing to register as Soviet agents, the FBI would have been placed in the "awkward position" of having to disclose its investigative techniques.

Stober and Hoffman also fault the government's behavior. While condemning Wen Ho Lee's unexplained and reckless mishandling of highly classified information, a mishandling that placed "so many of the nation's basic tools of weapons design at such great risk," they nonetheless conclude that his accusers were even more reckless in jumping to the conclusion without proof that Lee had either committed a crime or intended to commit one. "The FBI scrutinized Lee for more than five years," they write. "They studied Lee's mail, his phone calls, even his garbage, not to mention a quantity of data files equal to a fourth of the Library of Congress. They spent hours interviewing him, including 10 full days of sworn debriefings. They cobbled together a case of suspicious circumstances. But they never found evidence of espionage."

Both books sound well-reasoned alarms about the damage that can occur when spy catchers themselves try to overcome the difficulties and frustrations of their trade by cutting corners or breaking laws.

Theoharis asserts that Hoover's anti-Communist fervor led to the development of "a culture of lawlessness" within his agency. "The motivations of FBI officials may have been sincerely patriotic, based on their own political views of the nation's security interests," he writes. But, he concludes, "their decisions to leak information to ideologically supportive members of Congress and journalists nonetheless damaged a democratic system of limited government."

Because of Hoover's broader political agenda to discredit the American Left, Theoharis contends that the FBI's "counterintelligence investigations never focused solely, or even primarily, on suspected spies." Instead, agency records reveal that "their principal objective was to determine how Communists might influence government policy, labor organizations, and strike activities, movements for racial equality or social change, higher education, and the media (newspapers, movies, and books)."

Stober and Hoffman describe the firestorm over Wen Ho Lee as "an ugly chapter" in U.S. history. "It was a time when democratic ideals were forgotten in the name of national security, when ideology and ambition overpowered objectivity, and when partisan warfare trumped statesmanship." The authors rest their case with a quote from Sig Hecker, a former director of the Los Alamos laboratory, who says of Lee: "The way he was hung in public and the way he was jailed was really un-American."

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